The respondent petitioned for review of the
hearing panel’s decision ordering a suspension of 180 days. The
panel also ordered that respondent implement an appropriate
office management system and enroll in and complete a course in
attorney/client ethics. Respondent asks that the order of
suspension be vacated and that this matter be remanded to the
hearing panel for a further hearing on the appropriate level of
discipline. The Grievance Administrator filed a cross-petition
for review and asks that the discipline in this case be increased
to a suspension of at least one year. For the reasons stated
below, we conclude that the hearing panel’s findings and
conclusions have proper evidentiary support in the whole record
and they are affirmed. Respondent’s claimed grounds for review do
not warrant modification of the panel’s decision. Neither are we
persuaded that the discipline imposed is inappropriate under the
circumstances. The suspension and conditions imposed by the panel
are affirmed.

I. Facts

The eight-count complaint filed by the
Grievance Administrator on November 6, 1995 alleges that
respondent committed acts of professional misconduct involving
three separate complainants. At the conclusion of the
proceedings, the panel found that Paragraph 8(b) of Count 1; all
of Count 2; Paragraphs 20(a) and 20(c) of Count 3; Paragraphs
28(a), (b), (c) and (e) of Count 5 and all of Count 6 of the
formal complaint were not established and those charges were
dismissed. Dismissal of those charges is not challenged on review
and will not be discussed except to the extent that they include
pertinent undisputed general allegations.

In March 1993, respondent was retained by a
client (referred to here as Ms. Y) to bring claims for sexual
harassment and discrimination against her employer, General
Motors. At the time of the retention, respondent was informed by
Ms. Y that she was under the care of psychiatrist and was on
medical leave from her employment as the result of her emotional
condition. It is undisputed that respondent and Ms. Y engaged in
a consensual sexual relationship during their attorney/client
relationship.

Based upon the evidence, the hearing panel
found that respondent prejudiced his client’s legal position by
engaging in a sexual relationship with Ms. Y during their
attorney/client relationship; failed to take action to reinstate
her case after it was dismissed; failed to promptly advise her of
the dismissal; falsely stated to the client that her case had
been reinstated; and, after he was discharged, mispresented the
status of the case to Ms. Y’s new attorney.

Counts 3, 4 and 5 arise out of respondent’s
representation of Ms. W who was served with a complaint for
divorce filed in Ohio in May 1994. Eight days later, Ms. W took
the complaint to respondent and retained his services. In July
1994, the husband’s Ohio attorney contacted respondent to advise
that a default judgment had been entered in Ohio but that a
property settlement could still be negotiated. The hearing panel
sustained the charges in Count 3 that respondent failed to inform
his client of opposing counsel’s post-judgment offer to negotiate
a property settlement and failed to make any settlement proposals
on her behalf.

With regard to Count 4, the panel found that,
despite his knowledge of the divorce proceedings in Ohio,
respondent filed a complaint for divorce on Ms. W’s behalf in
Genesee County Circuit Court in June 1994 without disclosing to
the Court the existence of the Ohio matter. The panel found that
respondent assured his client that he would seek temporary
support and continued health insurance for her but failed to do
so, failed to have the summons and complaint served on the
defendant husband and failed to inform his client that the
Genesee County case was dismissed for lack of service in
September 1994.

The panel also sustained the charges in Count 5
that, having refiled the divorce action in Genesee County for Ms.
W., respondent again allowed the case to be dismissed for lack of
service.

Count 7 and 8 involve respondent’s retention in
July 1994 to bring land contract forfeiture proceedings.
Respondent was retained by Ms. S to bring the proceedings based
upon a power of attorney received from another individual. The
panel found that respondent neglected the matter for
approximately one year. The panel noted that despite an apparent
dispute as to who was to obtain certain information, "It
would seem that after a reasonable length of time, the respondent
should have proceeded either to determine the identity of the
tenant, request that the client do so, or proceed without the
tenancy matter and deal only with the forfeiture. Respondent did
nothing." (HP Report, June 11, 1996, p. 10.)

Finally, in considering the allegations in
Paragraph 8 that respondent made false statements to the Attorney
Grievance Commission in answer to Ms. W’s Request for
Investigation, the panel did not find that deliberate deception
was intended:

However, we find such a
careless disregard of the facts, such a cavalier
disregard of accuracy in responding and an
apparent cavalier attitude toward the seriousness
of a Request for Investigation as to constitute a
misrepresentation in the response. (HP Report,
June 11, 1996, pp. 10-11).

Before the first hearing, respondent filed a
motion for summary disposition as to Paragraph 8(a) of Count 1.
Respondent argued that the allegations in that paragraph that
respondent’s consensual sexual relationship with Ms. Y
jeopardized her legal position failed to state a claim of
professional misconduct under the court rules and rules of
professional conduct cited in the formal complaint. The hearing
panel denied respondent’s motion. The panel conducted evidentiary
hearings in this matter on March 22, May 15 and May 17, 1996.
Following the filing of the panel’s report on misconduct on June
11, 1996, the panel conducted a separate hearing on discipline as
required by MCR 9.115(J)(2). The panel’s order of suspension with
conditions was issued December 2, 1996.

The issues presented in the respondent’s
petition for review and the Grievance Administrator’s
cross-petition are discussed as follows:

a) Although the nature of [Ms.
Y’s] claim against General Motors was sexual
harassment/discrimination, and despite his
knowledge that [Ms. Y] was under the care of a
psychiatrist as the result of those employment
circumstances, he engaged in a sexual
relationship with [Ms. Y] in the course of their
attorney/client relationship, thereby
jeopardizing her legal position.

Paragraph 9 of Count 1 then alleges that
respondent’s conduct as set forth in the preceding paragraphs of
Count 1 constituted professional misconduct in violation of MCR
9.104(1-4) and the Michigan Rules of Professional Conduct (MRPC):
1.1(c); 1.3; 1.4(a); 3.2; 4.1; 6.5(a); and 8.4(a-c).

Respondent argued to the panel that those court
rules or rules of professional conduct cited by the Grievance
Administrator do not specifically prohibit a consensual personal
relationship, sexual or otherwise, between an attorney and
client.

In answer to respondent’s motion, the Grievance
Administrator asserted:

As an attorney subject to the
rules and regulations of the Michigan Supreme
Court, respondent admits his duty and
responsibility to avoid engaging in conduct that
could prejudice or damage a client’s interests
and to refrain from conduct contrary to justice,
ethics or good morals and conduct subjects the
legal profession to obloquy, contempt, censure or
reproach. (GA Answer to Motion for Summary
Disposition, p. 4.)

Nowhere in the Administrator’s pleadings filed
with the panel or the Board does the Administrator identify the
court rules or rules of professional conduct under which the
conduct described in Paragraph 8(a) is specifically charged as
professional misconduct.

Although not identified, the above-quoted
argument from the Administrator’s answer to motion for summary
disposition does track the language of two rules cited in the
complaint. MCR 9.104(2) prohibits conduct "that exposes the
legal profession or the court to obloquy, contempt, censure or
reproach." MCR 9.104(3) prohibits conduct that is
"contrary to justice, ethics, honesty or good morals."

The third "duty" identified in that
argument–the avoidance of conduct that could prejudice or damage
a client’s interest–is hortatory language with which we agree in
principle but which does not appear in a rule cited in the
complaint. Unlike Canon 7, DR 7-101(A)(3) of the former Michigan
Code of Professional Responsibility which referred specifically
to intentional prejudice or damage to a client during the course
of the professional relationship, there is no precise
counter-part to that language in any of the rules cited in the
complaint against respondent.

In its order of May 3, 1996 denying
respondent’s motion for summary disposition, the panel ruled:

The panel finds that a sexual
relationship can be factually determined to be a
griveable offense even without a specific
prohibition. We find that such conduct is
arguably contained within the general language of
the applicable sections of the rules in the same
manner as other conduct is determined to be
grievable without specific prohibition.

We find the formal complaint
alleges that under the circumstances the sexual
relationship placed the client’s legal rights in
jeopardy.

Therefore, the Grievance
Administrator may, and is required to, proceed
with proofs adequate to establish that the sexual
relationsihp did in fact prejudice the client’s
legal rights.

It is axiomatic that a finding of professional
misconduct must be preceded by fair notice to the respondent. In
re Ruffalo, 390 U S 544 (1968); Grievance Administrator v
Freid, 388 Mich 711 (1972). However, as Professor Wolfram
points out, the notice pleading concept in discipline proceedings
resembles modern pleading rules and requires notice only of the
course of conduct to be examined.

It would have been helpful to respondent and
the hearing panel, and perhaps the better practice, for the
Administrator to have identified the specific rules allegedly
violated by the charges in paragraph 8(a). Nevertheless, we are
unable to conclude that the hearing panel erred in denying
respondent’s motion for summary disposition. Respondent’s
assertions that his conduct did not jeopardize his client’s legal
position presented factual issues to be decided at trial. The
absence of a specific rule prohibiting sexual relations between
an attorney and client would not necessarily preclude a finding
of professional misconduct.

In its opinion on misconduct issued June 11,
1996, the panel distinguished "conduct" by an attorney
that prejudices the client’s case from the narrow category of
"sex with a client" as grounds for discipline. Although
we affirm the panel’s denial of the motion for summary
disposition, we also affirm its conclusion that the proofs did
not establish that the consensual sexual relationship itself
constituted grounds for professional discipline in this case.
This is not because of the nature of respondent’s relationship
with his client but because of the extemely limited scope of the
rule violations charged in the complaint. Although the
authorities cited by the Administrator support the contention
that a sexual relationship with a client during the period of
representation may violate certain rules of professional conduct,
those rules were not charged in this complaint.

We cite with approval Formal Opinion #92-364 of
the American Bar Association (1992). The ABA’s Committee on
Professional Ethics stated:

The Committee has been asked
whether a lawyer violates the ABA Model Rules of
Professional Conduct (1983, Amended 1991) or the
ABA Model Code of Professional Responsibility
(1969, Amended 1980) by entering into a sexual
relationship with a client during the course of
representation. In the opinion of the Committee,
such a relationship may involve unfair
exploitation of the lawyer’s fiduciary position
and presents a significant danger that the
lawyer’s ability to represent the client
adequately may be impaired, and that as a
consequence the lawyer may violate both the Model
Rules and the Model Code. The role of lover and
lawyer are potentially conflicting ones as the
emotional involvement that is fostered by a
sexual relationship has the potential to undercut
the objective detachment that is often demanded
for adequate representation.

That formal opinion identified five provisions
of the ABA Model Rules of Professional Conduct applicable to a
sexual relationship between a lawyer and client. Each model rule
cited by the Committee has an identical counter-part in the
Michigan Rules of Professional Conduct. They are: MRPC 8.7(b)
[conflict between the client’s and lawyer’s own interests]; MRPC
1.8(b) [protection of confidential client information]; MRPC
1.14(a) [recognition of a client’s emotional vulnerability]; MRPC
2.1 [a lawyer’s duty to exercise independent professional
judgment]; and, MRPC 3.7 [a lawyer’s duty to withdraw if the
lawyer will be a witness].

Inexplicably, although the Grievance
Administrator presented ABA Formal Opinion #92-364 as authority
for the proposition that the conduct alleged in Paragraph 8(a)
constituted professional misconduct, the rules cited in that
ethics opinion and the rules cited in this complaint are mutually
exclusive. The Formal Complaint fails to charge respondent with a
violation of any of the rules identified in the ethics opinion.
The ethics opinion, in turn, does not mention the Model Rule
equivalent of any of the rules charged in the complaint. ABA
Formal Opinion #92-364 provides an excellent framework for an
analysis of the ethical pitfalls inherent in such a relationship
between an attorney and client. That framework was not utilized
in drafting this complaint.

In Drucker’s Case, 577 A2d 1198 (NH
1990), the Supreme Court of New Hampshire affirmed a judicial
referee’s findings that an attorney’s sexual relationship with a
client violated certain rules of professional conduct. That
decision relied upon three rules with identical counter-parts in
the Michigan Rules of Professional Conduct: 1) Rule 1.7(b), by
representing a client when the representation was materially
limited by his own sexual interest in the client; 2) Rule 1.8(b),
by using information about the client’s fragile emotional state
and mental disorder to her disadvantage by engaging in sexual
relations with her, leading her to suffer emotional turmoil; and,
3) Rule 1.14(a), by failing to maintain a normal attorney/client
relationship with the client knowing that she was in a fragile
emotional state.

The Grievance Administrator cited Drucker
in his arguments to the panel and the Board. It does indeed
appear to be on point factually. Respondent’s relationship with
Ms. Y during his representation, accompanied by his knowledge of
potential emotional vulnerability could, arguably, have supported
findings that his conduct violated MRPC 1.7(b), MRPC 1.8(b) and
MRPC 1.14(a). As with the ABA opinion, however, the applicability
of Drucker to this case is undercut, if not completely
nullified, by the fact that respondent Stevens was not charged
under any of the rules discussed in Drucker and respondent
Drucker was not charged with any of the rule violations which
appear in the instant case.

Responding to an inquiry on this phenomenon,
the Administrator’s counsel noted during oral arguments that the
New Hampshire Supreme Court had not adopted a counterpart to MRPC
6.5. Counsel speculated that had such a rule existed at the time
in New Hampshire, that would have been the rule violation cited
in Drucker. (Brd. Rev. Hrg. 3/27/97, p. 27).

(a) A lawyer shall treat with
courtesy and respect all persons involve in the
legal process. A lawyer shall take particular
care to avoid treating such a person
discourteously or disrespectfully because of the
person’s race, gender, or other protected
personal characteristic. To the extent possible,
a lawyer shall require subordinate lawyers and
non-lawyers assistance to provide such courteous
and respectful treatment.

We find nothing in the comment to that rule,
nor has our attention been called to any authority, which
suggests that MRPC 6.5(a) is applicable to respondent’s conduct
as described in Paragraph 8(a). The connection between a rule
prohibiting discourteous treatment based on gender and an
attorney’s sexual relationship with a client during the period of
representation is too tenuous to support a finding of misconduct
under that rule.

In short, the authorities cited by the
Administrator, specifically ABA formal opinion #92-364 and Drucker’s
Case, supra, provide a detailed road map for the
presentation of charges based upon an attorney’s sexual
relationship with a client during the period of representation.
The complaint in this case proceeds down a different, murkier,
path and, with regard to Paragraph 8(a), does not reach the
intended destination.

Respondent’s other acts of misconduct in this
case are well pled and fully supported by the record. This is a
case in which we consider the appropriate level of discipline for
respondent’s neglect of client matters, his failure to seek his
clients’ lawful objectives; his failure to act with reasonable
diligence and promptness; and his misrepresentations to his
clients, another attorney and the Attorney Grievance Commission.
It is not, however, a case in which discipline is imposed for
respondent’s sexual relationship with a client or for
discourteous conduct based upon gender and it should not be cited
as such.

III.The Findings of
Misconduct as to Paragraphs 20(b), 24(a-d), and 28(d)

Respondent seeks review of the hearing panel’s
findings related to the COBRA benefits at issue in Ms. W’s
divorce action. Specifically, respondent argues that the
misconduct alleged in Paragraphs 20(b), 24(a-d) and 28(d) are
without evidentiary support and should therefore be dismissed.

In reviewing a hearing panel’s findings, we
must determine whether there is proper evidentiary support for
those findings in the whole record. The Board will not substitute
its judgment for that of the panel below which had the
opportunity to observe and assess the demeanor and credibility of
the witnesses. Estes v State Bar Grievance Administrator,
393 Mich 645 (1974); Grievance Administrator v David N. Walsh,
DP 16/83 (1984).

The panel was presented with conflicting
testimony and it made determinations based upon credibility. The
credibility of the witness and the weight to attach to each
person’s testimony, including the testimony of respondent, is for
the panel to determine. Matter of Daggs, 411 Mich 304, 314
(1981). The record in this case supports the hearing panel’s
findings of misconduct. The sub-paragraphs enumerated by
respondent allege acts or omissions which may be described
generally as neglect, failure to seek a client’s lawful
objections and lack of adequate communication. The testimonial
support for the panel’s findings with regard to those
sub-paragraphs is noted, with page citations, in the Grievance
Administrator’s reply brief.

IV. The Relationship Between
Former AGC Counsel Joan Vestrand and Attorney Lucetta Franco

At the hearing before the panel on May 15,
1996, the Grievance Administrator’s counsel, Joan P. Vestrand,
called attorney Lucetta V. Franco for direct examination on the
subject of Ms. Franco’s representation of Ms. Y. Ms. Franco
testified that she was contacted by Ms. Y, about Ms. Y’s claim
against General Motors and her dissatisfaction with respondent’s
representation. Ms. Franco testified that she called respondent
to inquire about the status of Ms. Y’s claim and was told by
respondent that a suit had been filed. Ms. Franco testified that
this information was transmitted to Ms. Y who then made her own
inquiry to the Genesee County Circuit Court. Under
cross-examination by respondent’s counsel, Ms. Franco disclosed
that although she subsequently represented Ms. Y in a malpractice
case against respondent, she declined to represent Ms. Y in a
claim against General Motors. Ms. Franco was not called as a
expert witness.

Respondent now asks that the Board take notice
that 1) AGC counsel Joan Vestrand left the employment of the
Grievance Commission in August 1996; 2) that attorney Franco
filed a law suit on Ms. Vestrand’s behalf in approximately
November 1996 for matters related to Ms. Vestrand’s employment at
the AGC; and, 3) that at sometime subsequent to the hearings
before the panel, Ms. Franco also entered into attorney/client
relationships with complainants Ms. S and Ms. W.

Respondent speculates that Ms. Franco may
have consulted with Ms. Vestrand, Ms. S or Ms. W at some time
prior to, or contemporaneous with, her testimony on May 15, 1996.
This appears to be conjecture on respondent’s part. More
importantly, respondent has not established how such
relationships, if true, resulted in a denial of due process.
There is no claim that Ms. Franco’s representation of Ms.
Vestrand and Ms. Y were related in any way. The conclusory claim
that Ms. Franco’s attorney/client relationships with the
complainants and/or Ms. Vestrand raise issues of credibility is
neither explained nor supported in the record.

Included in this section of respondent’s brief
is an unrelated argument based upon an affidavit of Jimmy
Anderson dated December 12, 1996. Mr. Anderson was called as a
witness by the Grievance Administrator and testified to the panel
on March 22, 1996. We are not persuaded that the Anderson
affidavit establishes good cause to remand this matter to the
panel to receive further evidence.

V. Evidence Submitted by
Respondent at the Hearing on Discipline

Respondent argues that the panel erred in
failing to consider various letters from judges and lawyers
regarding respondent’s reputation and abilities. Respondent
further argues that the panel failed to give sufficient weight to
the mitigating effect of respondent’s subsequent settlement of
the malpractice claim against him by Ms. Y. The record reflects
that these letters were admitted into evidence by the hearing
panel with an acknowledgment from the panel’s chairperson that a
proper foundation for their admissibility had not been laid but
that the letters would be received for "whatever value we
can assign to them", (Tr. pp. 5-7). As for respondent’s
settlement with Ms. Y, both parties had an opportunity to present
their arguments to the panel regarding the aggravating or
mitigating effect of that settlement.

The hearing panel was not required to assign
numerical or percentile values to the aggravating and mitigating
factors which it considered in its final assessment of
discipline. Respondent’s argument that the panel failed to give
"sufficient" weight to specific mitigating factors is
rejected.

VI. Level of Discipline

The Grievance Administrator asks that the
six-month suspension imposed by the hearing panel be increased to
a suspension of one year or more. The Administrator first argues:

If only the misconduct before
this Board was that which occurred during [Ms.
Y’s] matter, a suspension for a period of years
would be in order. Respondent exploited Ms. [Y’s]
vulnerability and engaged in a sexual
relationship prejudicing her interests. (GA Brief
in Support of Petition for Review pp. 4-5).

In support of this argument, the Administrator
relies exclusively on two authorities: ABA Committee on Ethics
and Professional Responsibility, Formal Opinion #92-364 (1992);
and Drucker’s Case, 133 NH 326; 677 A2d 1198 (1990). As we
have discussed earlier in this opinion, the applicability of
those authorities is extremely limited here since none of rule
violations discussed in the ABA opinion or Drucker were
found or charged in the instant case.

This is not to say that Ms. Y’s vulnerability
or the resulting prejudice to her case were not properly
considered in aggravation. The American Bar Association’s Standards
for Imposing Lawyer Sanctions (1986), for example, recognizes
potential or actual injury caused by a lawyer’s misconduct and
vulnerability of the victim as factors to be considered when
imposing discipline. See Standards 3.0; 9.22(h). Ms. Y’s
emotional vulnerability and the resulting prejudice to her claims
were present to some degree in the context of the remaining
charges in Count 1. The panel’s report makes it clear that these
factors were considered by the panel along with such other
important factors as an apparent pattern of misconduct and
respondent’s misrepresentations to a client, another attorney and
the Attorney Grievance Commission.

As we have noted before, the formulation of
discipline in a particular case is far from an exact science.

The Attorney Discipline Board’s
power to modify the discipline imposed by a
hearing panel should be exercised with some
discretion. In that respect, the Board’s
supervisory role over its appointed hearing
panels is not unlike the Supreme Court’s
authority to change the discipline imposed by the
Board. In discussing that authority, the Court
stated that "We invoke this power only if
the disciplinary action imposed by the Grievance
Board is inappropriate." [Citations
omitted.]

Grievance Administrator v Polizzi,
95-69-JC (ADB 1996).

Our inclination to give deference to a panel’s
assessment of discipline is strengthened where, as in this case,
the hearing panel’s report includes a discussion of the
aggravating and mitigating factors considered by the panel and
where it appears that those factors have evidentiary support in
the record.

Our paramount concern in reviewing the
appropriate level of the discipline is the protection of the
public, the courts and the legal profession. We conclude that the
hearing panel’s order of suspension in this case, which includes
corrective conditions and requires respondent to establish his
fitness to practice law in separate reinstatement proceedings,
achieves that goal.